PPG Industries, 559 (2002)

Docket Number:10-CA-32813
 
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PPG Industries, Inc. and Randall Martin. Case 10-

CA-32813

November 20, 2002

ORDER REMANDING PROCEEDING TO ADMINISTRATIVE LAW JUDGE

BY MEMBERS LIEBMAN, COWEN, AND BARTLETT

On December 31, 2001, Administrative Law Judge William N. Cates issued the attached bench decision. The General Counsel filed exceptions, a supporting brief, and a reply brief. The Respondent filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to remand this proceeding to the judge for further consideration as set forth below.

The complaint alleges that the Respondent suspended and then discharged Randall Martin in violation of Section 8(a)(1) and (3) of the Act. In a bench decision, the judge found that the General Counsel established his initial burden of showing that the discharge was discriminatorily motivated, but the judge went on to find that the Respondent established a defense under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In making his findings, however, the judge failed to resolve certain evidentiary issues. In this regard, the judge failed to act on the Respondent's petition to revoke the General Counsel's subpoena for documents concerning the administration of the Respondent's attendance policy. Nor did the judge rule on the General Counsel's request that an adverse inference be drawn from the Respondent's failure to produce two classes of documents in response to the subpoena. Therefore, we will remand this case to the judge to consider: (1) whether to grant the Respondent's petition to revoke; and (2) if the petition to revoke is denied in whole or in part and the Respondent fails to produce the relevant documents, whether an adverse inference should be drawn.1

ORDER

IT IS ORDERED that this proceeding is remanded to Administrative Law Judge William N. Cates for the purposes described above.

IT IS FURTHER ORDERED that the judge shall prepare and serve on the parties a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended Order, as appropriate on remand. Copies of the supplemental decision shall be served on all parties, after which the provisions of Sec

1 At this stage, we need not address our dissenting colleague's contentions, particularly where they reflect a departure from the Board's current law.

tion 102.46 of the Board's Rules and Regulations shall be applicable.2

MEMBER COWEN, dissenting.

The majority would remand this case for the administrative law judge to consider whether to grant the Respondent's petition to revoke the General Counsel's subpoena for documents concerning the administration of the Respondent's attendance policy, and, if the petition to revoke is denied in whole or in part and the Respondent fails to produce the relevant documents, whether an adverse inference should be drawn. I do not believe that a remand is appropriate because, as more fully discussed below, it was the General Counsel's responsibility to ensure that the judge ruled on the petition to revoke the subpoena at the original hearing, an adverse inference should not be drawn unless the General Counsel has sought court enforcement of the subpoena, and because in any event the Respondent has already provided the General Counsel with documents relevant to the disparate treatment issue on which the General Counsel's subpoena is focused.

The relevant facts can be summarized as follows. The Respondent discharged Randall Martin following his unexcused absence from work on June 9, 2000.1 The Respondent informed Martin that, as a result of his absence, he committed two violations of the Respondent's disciplinary policies, which advanced him from step 3 to step 4 in its progressive discipline system. Step 4 was discharge. First, the Respondent explained that Martin was subject to step discipline for his absence because, at the time of his discharge, he was in the Respondent's accelerated program for absenteeism control.2 Pursuant to this program, an employee would receive step discipline if he attained more than four unexcused absences during a 12-month period. Second, the Respondent indicated that Martin was exposed to discipline because he failed to report off before the start of his shift on June 9. The rule pertaining to reporting off provides, in relevant part, that if employee is going to be late for work or did not know in advance that he would be missing work, he should make every attempt to contact his or her supervisor.

The complaint alleges that the Respondent suspended and then discharged Martin in violation of Section 8(a)(1) and (3) of the Act. The judge found that the Gen-2 In remanding this case, we are not passing on any of the other is-sues raised by the General Counsel's exceptions at this time.

1 All dates are in 2000 unless otherwise specified.

2 It was undisputed that Martin was in the accelerated program for absenteeism control. Moreover, as the judge indicates, it is not alleged that any of the absences that resulted in Martin being placed in this program were discriminatorily motivated.

eral Counsel established a prima facie showing of discriminatory discharge, but went on to find that the Respondent established a defense under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). With respect to the Respondent's affirmative defense, the judge explained that as a result of Martin's absence on June 9, he was exposed to the next level of discipline under the Respondent's procedures. Further, the judge indicated that by not calling in prior to the start of his work shift, he violated the reporting off policy, which also exposed him to discipline. Finally, the judge reviewed the record before him to find ample evidence that the Respondent established that it did not treat Martin differently than it had treated other employees.

The General Counsel issued a subpoena shortly before the hearing, which sought documents relative to the Respondent's attendance policy. In response to the subpoena, the Respondent provided the relevant disciplinary records for all employees who received step discipline for violating the Respondent's absenteeism and/or reporting off policy. These records also provide the reason that the employee received step discipline for absentee-ism/failure to report off and a section for the employee, if the employee desires, to provide an explanation for his conduct. On many of these records, employees explained that their absences/failures to report off were due to medical reasons. The Respondent also produced the "Employee Absenteeism Report," which is a several hundred page printout summarizing the attendance records for all production and maintenance employees at its facility. This document shows, in relevant part, the date of the employee's absence, whether the absence was unexcused and, thus, would count toward step discipline, and whether the employee had received step discipline due to the absence.

The Respondent did not produce two classes of documents, the "Employee Action/Discipline History" (Employee Action) and "Absences with Notes" reports for employees other than Martin. The Employee Action report shows, in relevant part, an employee's entire history of discipline and the dates when offenses were cleared from the disciplinary step procedure. The Respondent introduced Martin's Employee Action form during its human resources supervisor, Joyce Spiller's testimony. Spiller testified that she printed out this document shortly after Martin's June 9 absence to examine his disciplinary record. The General Counsel objected to the introduction of this document on the grounds that the Respondent had not produced the same form for its other production employees. In response to the General Counsel's objection, counsel for the Respondent ex-

plained that it had filed a petition to revoke the subpoena, and the petition covered the Employee Action report because it was overbroad to the extent it encompassed disciplinary information for offenses other than absenteeism and failure to report off. Counsel for the Respondent noted, however, that it provided the relevant disciplinary records for employees who had been disciplined for the same infractions as Martin.

With respect to the "Absence with Notes" forms, the record reveals that these are unofficial records that are maintained in electronic form by Spiller. These forms are used by Spiller to track an employee's attendance record, and they provide, in relevant part, an employee's history of unexcused absences and indicate whether the absence counted toward step discipline. As with Martin's Employee Action report, Spiller printed out Martin's Absence with Notes report shortly after his June 9 absence. Spiller testified, and the General Counsel did not dispute, that the Respondent was unable to view or print out the Absence with Notes reports at the time of the hearing and for a number of months prior to it.

The General Counsel requested that the judge draw an adverse inference against the Respondent from its failure to produce the Employee Action and Absence with Notes forms for employees other than Martin. The judge never ruled on the General Counsel's request, nor did he act on the Respondent's petition to revoke the General Counsel's subpoena. My colleagues would remand the case for the judge to consider these evidentiary issues that he failed to address at either the hearing or in his bench decision. While I acknowledge that the judge should have resolved these issues, I would adopt his findings and find that a remand is unnecessary for the following reasons.

First, in my view, it is the General Counsel's burden to obtain the documents sought by a...

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